Citation Nr: 0932184
Decision Date: 08/27/09 Archive Date: 09/04/09
DOCKET NO. 06-07 693 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a back disability.
4. Entitlement to service connection for a neck disability.
5. Entitlement to service connection for a right knee
disability.
6. Entitlement to service connection for a left knee
disability.
7. Entitlement to service connection for posttraumatic
stress disorder (PTSD).
8. Entitlement to service connection for residuals of
frostbite.
9. Entitlement to service connection for a stomach
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
H. Seesel, Associate Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Veteran had active service from January 1953 until
January 1956.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a June 2004 rating decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
A preliminary review of the record reflects that further
development is necessary. Although the Board sincerely
regrets the additional delay, it is necessary to ensure that
there is a complete record upon which to decide the Veteran's
claims so that he is afforded every possible consideration.
At the outset, the Board notes that the medical evidence of
record indicate that the Veteran is currently being followed
and/or treated by VA medical professionals for ailments that
are generally related to all of the claimed disorders for
which compensation is sought.
This is a case in which the Veteran's service records are not
in evidence. In cases where the Veteran's service records
are unavailable through no fault of the Veteran, there is a
heightened obligation to assist the Veteran in the
development of his case. O'Hare v. Derwinski, 1 Vet. App. 365
(1991). The heightened duty to assist the Veteran in
developing facts pertinent to his claim in a case where
service treatment records are presumed destroyed includes the
obligation to search for alternative medical records. Moore
v. Derwinski, 1 Vet. App. 401 (1991). Where the Veteran's
service treatment records have been destroyed or lost, the
Board is under a duty to advise the Veteran to obtain other
forms of evidence, such as lay testimony, employment
examinations, pharmacy records and insurance examination
reports. Dixon v. Derwinski, 3 Vet. App. 261 (1992).
While the Veteran was previously advised that his service
treatment records were unavailable and the RO requested he
provide more information concerning Army Hospitals, he was
never informed that he could submit alternate sources of
evidence, including statements from service medical
personnel, "buddy" statements or affidavits and other forms
of lay evidence. Significantly, the Veteran submitted copies
of the envelopes from letters he sent during service to
verify where he was stationed; however, he did not submit the
accompanying letters, nor was he advised that he could submit
these letters in support of his claim.
Additionally, while the RO searched alternate source
documents for records concerning the Veteran, the Veteran and
his representative noted the RO searched for these documents
using the wrong Army serial number. Specifically, the RO
searched under serial number RA 112611818; however, the
Veteran indicated that his serial number was RA 11261878 and
submitted several military orders confirming this number.
Significantly, the certificate of service sent by the
National Personnel Records Center also verified the Veteran's
serial number was in fact RA 11261878.
In view of VA's inadequate notice to the Veteran and flawed
search for records in this case - coupled with Veteran's
currently documented medical problems - the Board finds that
at a minimum, the Agency of Original Jurisdiction (AOJ) must:
attempt to properly notify the Veteran of his rights to
submit evidence or information; and again conduct the records
search using the correct serial number.
The record also reflects the Veteran is in receipt of Social
Security Administration disability benefits. The Veteran
indicated that these benefits are based in part on his back
disability. However, complete copies of the medical records
upon which any disability decision was based, as well as any
agency decision with the associated List of Exhibits, have
not been made part of the claims file. VA's duty to assist
extends to obtaining records from the Social Security
Administration. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(c)(2).
Concerning the claims for service connection for hearing loss
and tinnitus, the Board is of the opinion that a VA
examination is warranted. Under the duty to assist, a
medical examination or medical opinion is considered
necessary if the information and evidence of record does not
contain sufficient competent medical evidence to decide the
claim, but (1) contains competent medical evidence of a
currently diagnosed disability or persistent or recurrent
symptoms of a disability; (2) establishes that the Veteran
suffered an event, injury, or disease in service; and (3)
indicates that the claimed disability or symptoms may be
associated with an established event, injury or disease in
service or with another service-connected disability. 38
C.F.R. § 3.159(c)(4).
In the present case, the Veteran has provided a March 2003 VA
outpatient treatment record that appears to confirm a
diagnosis of hearing loss according to 38 C.F.R. § 3.385 and
also provided a diagnosis of tinnitus. The Veteran provided
a history of noise exposure during service and submitted an
October 2004 statement of a VA physician, which noted it was
at least possible that a portion of the hearing loss and
tinnitus could be caused by the noise exposure suffered in
service.
Accordingly, the Veteran should be afforded a VA examination
to determine the nature, extent, and etiology of the hearing
loss. See Charles v. Principi, 16 Vet. App. 370 (2002)
(Observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to
provide a medical examination as "necessary to make a
decision on a claim, where the evidence of record, taking
into consideration all information and lay or medical
evidence [including statements of the claimant]; contains
competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's active military, naval, or
air service; but does not contain sufficient medical evidence
for the [VA] to make a decision on the claim.").
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited
handling is requested.)
1. The RO/AMC shall advise the Veteran of
the option of submitting lay testimony and
other alternate sources of evidence in
support of the claims, including but not
limited to letters to and from the Veteran
during the course of military service that
corroborate in-service events; letters of
commendation or appreciation dating from
military service that would substantiate
his account of military service events;
accounts, statements, and letters from
family, friends, acquaintances, and co-
workers, detailing the makers'
recollection of the development of the
Veteran's in-service and post-service
history as to the claimed disorders; post-
service employment physical examinations,
insurance claims, and any other material
that would indicate that the Veteran's
disorders were incurred in or as a result
of any incident of active military
service.
2. The RO/AMC shall search alternate
source documents, including, but not
limited to morning reports and sick
reports, using the correct serial number
RA 11261878.
3. The RO/AMC shall attempt to obtain
additional documents concerning the
Veteran's Social Security Administration
(SSA) benefits; specifically, any List of
Exhibits associated with the SSA's
decision, including copies of all of the
medical records concerning the Veteran's
claims on appeal.
4. The Veteran shall be afforded an
audiological examination to ascertain the
nature, extent, onset and etiology of the
Veteran's hearing loss and tinnitus. Any
and all indicated evaluations, including
audiometric and speech recognition using
the Maryland CNC should be performed. The
examiner is requested to review all
pertinent records associated with the
claims file, particularly service
treatment records and records of treatment
for hearing loss. The examiner shall
opine whether it is at least as likely as
not (a 50 percent probability or more)
that any current hearing loss is related
to claimed in-service acoustic trauma.
A clear rationale for all opinions is
required, to include a discussion of the
facts and medical principles involved.
Copies of all pertinent records in the
Veteran's claims file, or in the
alternative, the claims fie, must be made
available to the examiner for review in
connection with the examination.
5. The RO/AMC shall then take such
additional development action, including
providing for VA examinations, as it deems
proper with respect to the claims. When
the development requested has been
completed, the case should again be
reviewed by the RO on the basis of the
additional evidence and readjudicated. If
the benefits sought are not granted, the
Veteran and his representative should be
furnished a Supplemental Statement of the
Case and be afforded a reasonable
opportunity to respond before the record
is returned to the Board for further
review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).